(concurring).
In my opinion the Trial Court did not err in admitting in evidence the testimony of the witness Cole given at a former trial of this case.
I accept as correct the statement of the rule to be observed in admitting testimony given at a prior trial quoted in the majority opinion from Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681.
The only portion of such rule applicable here, in my opinion, is the disjunctive phrase “ * * * or is physically unable to testify. * * * ” The rule does not require any showing of diligence in this regard and I have found no case requiring it.
Justice Gray holds, however, that diligence is required and the deposition of the ill witness should have been taken if possible.
It must be remembered that the parties have had their day in court with the absent witness and the question of whether his testimony should be reproduced by reading the transcribed notes of the court reporter in the one instance or the transcribed notes of the notary public in the other instance is one of small moment. In either case all that the jury sees is the written page. I prefer to believe that our law is not so impractical as to require the dilatory, uneconomical taking of depositions under these circumstances and thus duplicate the testimony of an absent sick witness.1
The following evidence pertaining to the absent witness Cole was before the Trial Judge when he ruled on the admissibility of his prior testimony:
“Q. All right; Mr. Hart, do you know where Mr. Cole is at the present time? A. He’s in the hospital at Denison, Texas — railroad hospital.
“Q. Do you know what his problem is? Is he sick? A. Yes; he’s ill.
“Q. And, when did he go to the hospital ? A. He went to the hospital a week ago today; that would have been on the 5th of February.
“Q. Now, prior to that time had you discussed with Mr, Cole and had *412he planned to be present at this particular hearing? A. Yes; he had.
“Q. Before his illness? A. Yes.
“Q. And, when did you find out that he was going to the -hospital ? A. I didn’t find out that he was actually in the hospital until either last Friday or last Saturday, and I learned from the neighbors that he was in the hospital in Denison.
“Q. And, then, you did investigate that and verify that fact? A. Yes, sir.”
Justice Gray finds two faults with this testimony: (1) It does not show that the witness was physically unable to testify, only that he was sick and in the hospital (2) that it does not show the illness to be a continuing one, not merely temporary.
The question here is whether or not the Trial Judge abused his discretion under the circumstances. Federal Underwriters Exchange v. Rigsby, Tex.Civ.App.Beaumont, 130 S.W.2d 1105, writ dism. cor. judgm.; Bowles v. Bryan, Tex.Civ.App. Dallas, 277 S.W. 760, writ dism., w. o. j.; 17 Tex.Jur. p. 660.2
I infer, as did the Trial Judge, that if a person is ill and confined to a hospital he is too sick to be in court, 260 miles away, and hence is “physically unable to testify.” This inference is strengthened here by the fact that Mr. Cole was in a “railroad hospital.”
As to the second objection made by Justice Gray, neither in the rule quoted from Lone Star nor in any case cited nor in any Texas authority found by me does the requirement appear that it must be shown that the illness of an absent witness be more than temporary.
In McCormick & Ray, footnote 1, p. 729, it is stated:
“As to the duration of the infirmity, it would seem that inability at the time of the trial to attend, or testify, should be the test, and that the former evidence should be admissible, in the court’s discretion, whether the infirmity were temporary or permanent.”
Whatever the rule should be I find no authority for holding that proof of confining illness of the witness at the time of trial is not a sufficient predicate for the admission of his former testimony.
I wish to repeat that the question is not, in my opinion, one of substance. If depositions may be repeatedly used in succeeding trials why should the use of former testimony be made more restrictive than prior decisions require?
On motion for new trial the claimed error in admitting the Cole prior testimony was again raised. Appellant attached to its motion an affidavit of Dr. W. H. Frietsch from which I quote:
“That he is cognizant of the facts herein stated and is competent to make this affidavit; that he is a regular licensed and practicing physician and surgeon of the State of Texas, residing in Denison, Texas, and of the regular school of medicine; that he knows Hugh Copeland Cole, Sr., a resident of Smithville, Bastrop County, Texas; that on or about the 6th day of February, 1957, the said Hugh Copeland Cole, Sr., reported to him at the outpatient clinic of the Missouri-Kansas-Texas Railroad Employes Hospital at Denison, Texas, for examination, complaining of discomfort and a burning sensation when passing material from *413his bladder. He stated that this discomfort had been of several months’ duration; that he had taken treatment with sulfa drugs for relief, but that relief had not been obtained; that the said Hugh Copeland Cole, Sr., was thereupon by the said Dr. W. H. Frietsch, M. D., affiant here, hospitalized for further examination and treatment under a diagnosis of cysty-tis; that this diagnosis was confirmed by further examination and the patient discharged from the hospital on the 25th day of February, 1957.
“Affiant, Dr. W. H. Frietsch, M. D. further states that at all times while the said Hugh Copeland Cole, Sr., was in the hospital at Denison, Texas, he was both physically and mentally capable of giving testimony under examination both direct and cross-examination in any litigation in which he might be called as a witness. He further states that there was no reason why if necessary, during the stay of Mr. Cole in the Denison hospital that Mr. Cole could not have left the hospital and reported to testify in person at the trial of Nolan Bush vs. Missouri-Kansas-Texas Railroad Company of Texas when pending in Bastrop County, Texas; that such physical appearance at the trial could have been made by the said Hugh Copeland Cole, Sr., with-out danger to his physical condition and, more particularly could have been made on any one of the following days, February 12, 13, 14, or 15, 1957.”
Appellant offered no testimony in support of the affidavit.
The witness Cole did testify:
“Q. What did Dr. Frietsch say was wrong with you, or did he know what was wrong with you? A. He didn’t know for a period of ten days until he found the trouble and then is when he called Moorman in and gave me cysto-scopic examination and found the trouble.
“Q. What was your trouble? A. Sir?
“Q. What was your trouble? A. An infection in the bladder.
“Q. And then they gave you some treatments? A. That’s right.
"Q. Now, were you in any pain when you got there? A. I certainly was; yes, sir.
“Q. How long were you in pain after you got there? A. I was in pain every day.
“Q. Was it severe pain? A. It was.
“Q. And every day until you were released — did you finally get some * * * A. Even when I left there it was still some pain.
“Q. Well, was it as severe when you left as it was when you got there? A. No, sir.
“Q. Did you have any conversation with Dr. Frietsch about whether you should stay in the hospital, or did he order you to stay in the hospital? A. He did. That’s the first thing he told me; he said * * *
******
ifQ. What did he tell you ? A. He told me to stay there until he found out what was the matter with me— ‘I’m going to cure you, but you stay right here; don’t leave this building, and I will cure you if possible’.
“Q. All right; you were under his care? A. Yes, sir.
“Q. And he, himself, recommended you stay in the hospital? A. He did.
* * * * * *
“Q. Let me ask you this question— did they catheterize you while you were there? A. Yes, sir.
“Q. This doctor did? A. Yes, sir.
“Q. Every day — several times? A. No; twice.
*414“Q. And through February 6th., for some ten days, it’s your testimony you were in extreme pain ? A. That’s right.
“Q. Did you feel at that time you could have come down here and testified? A. I don’t believe I would have left there, even if he hadn’t told me to.
“Q. You were that sick? A. Yes, sir.
“Q. Now, you testified in the trial of this other case, did you not? A. Yes, sir.
“Q. And you knew that it had been set down for trial again, did you not? A. That’s right.
“Q. Had you been able, you would have appeared, would you not? A. Certainly.”
The Trial Court could have, of course, granted a new trial and no doubt would have if he had been convinced that his ruling in admitting the Cole prior testimony was erroneous or that the predicate made for its admission was factually incorrect.
The evidence heard on the new trial hearing confirms, in my judgment, the original ruling of the court in admitting the prior testimony of Mr. Cole.
Except as indicated herein I concur in the opinion of Associate Justice GRAY. I also concur in the opinion of Chief Justice ARCHER insofar as it affirms the judgment below.
. “On principle, it would seem that the fact that the deposition of the witness could have been taken though he is unavailable as a witness at the trial, should have no weight * * ⅜ against the admission of the previous testimony, for the deposition if taken would be no better than the former testimony.” McCormick and Ray, Texas Law of Evidence, 2d Ed. Sec. 943, p. 721.
. The test is otherwise stated in McCormick & Ray, Texas Law of Evidence, 2d Ed. p. 738:
“If reasonable minds could not differ as to existence or non-existence of the .facts necessary to the predicate, the judge would determine the question, ex-eluding or admitting the former testimony accordingly.”
' See an enlightening discussion of the term “abuse of discretion” by Associate Justice W. St. John Garwood dissenting in Ditto v. Ditto Investment Co., Tex., 309 S.W.2d 219, 224.